Rolls-Royce Corporation et al.

Patent Trials and Appeals Board

Dec 13, 2021

2020004783 (P.T.A.B. Dec. 13, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/644,559 07/07/2017 Graham Crannell 1106-291US01/RCA11861 8452 120486 7590 12/13/2021 Shumaker & Sieffert, P.A. Rolls-Royce Corporation 1625 Radio Drive Suite 100 Woodbury, MN 55125 EXAMINER KIM, MATTHEW DAVID ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 12/13/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): pairdocketing@ssiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GRAHAM CRANNELL, PETER BELING, BENJAMIN CHOO, MICHAEL LANDAU, STEPHEN ADAMS, ANN BOLCAVAGE, and ROY PETER MCINTYRE _____________ Appeal 2020-004783 Application 15/644,559 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, LARRY J. HUME, and MICHAEL T. CYGAN, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-20, which constitute all the claims pending in this application. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We Affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real parties in interest in this appeal are “Rolls-Royce Corporation of Indianapolis, IN, Rolls-Royce PLC of London, UK and [The] University of Virginia of Charlottesville, VA.” See Appeal Br. 3. Appeal 2020-004783 Application 15/644,559 2 STATEMENT OF THE CASE 2 Introduction Embodiments of Appellant’s claimed subject matter relate generally to “techniques for automated visual inspection of components.” Spec. ¶ 1. Representative Claim 1 1. An apparatus for measuring a feature of a tested component comprising: a lighting device configured output light to illuminate at least a portion of the tested component; an imaging device; and a computing device configured to: [L1] receive, from the imaging device, a first image of the portion of the tested component in a first state; segment the first image to isolate a first target area of the image from background areas of the first image; measure a plurality of first lengths, wherein each respective first length of the plurality of first lengths traverses a respective portion of the first target area; [L2] receive, from the imaging device, a second image of the portion of the tested component in a second, different state; segment the second image to isolate a second target area of the second image from background areas of the second image; measure a plurality of second lengths, wherein each respective second length of the plurality of second lengths traverses a respective portion of the second target area, and [L3] wherein a respective first length of the 2 We herein refer to the Final Office Action, mailed July 5, 2019 (“Final Act.”); the Appeal Brief, filed January 6, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed April 10, 2020. No Reply Brief was filed. Appeal 2020-004783 Application 15/644,559 3 plurality of first lengths corresponds to a respective second length of the plurality of second lengths; and compare each respective first length of the plurality of first lengths to the corresponding second length of the plurality of second lengths. Appeal Br. 17 (disputed claim limitations bracketed as L1, L2, and L3 and emphasized). Prior Art Patent Evidence Relied Upon by the Examiner Name Reference Date Goldstein et al. (“Goldstein”) US 2015/0009321 A1 Jan. 8, 2015 Higa US 2015/0161468 A1 June 11, 2015 Fabrizius et al. (“Fabrizius”) US 2016/0103050 A1 Apr. 14, 2016 Kuhn et al. (“Kuhn”) US 2019/0047895 A1 Feb. 14, 2019 Rejections Rejection Claims Rejected 35 U.S.C. § References/Basis A 1-6, 9-16, 19, 20 103 Goldstein, Higa, Fabrizius B 7, 8, 17, 18 103 Goldstein, Higa, Fabrizius, Kuhn Appeal 2020-004783 Application 15/644,559 4 ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are forfeited or waived.3 See, e.g., 37 C.F.R. § 41.37(c)(1)(iv) (2019). Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (“BRI”) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and address specific findings and arguments for emphasis in our analysis below. 3 See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020) (some internal citation omitted): It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993).[] “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733-34, and for that reason, it is worth attending to which label is the right one in a particular case. (internal citations omitted). Appeal 2020-004783 Application 15/644,559 5 Claim Grouping Defined by Appellant In the Appeal Brief, Appellant defines the following claim Groups: Group Claims argued Rejection See Appeal Brief Representative Claim I 1, 4-6, 9, 10, 14-16, 19, 20 A Appeal Br. 6-12 1 II 2, 12 A Appeal Br. 12, 13 2 III 3, 13 A Appeal Br. 13, 14 3 IV 11 A Appeal Br. 14, 15 11 V 7, 8, 17, 18 B Appeal Br. 15, 16 7 However, we note that Group IV (corresponding to independent method claim 11) is not argued separately, as Appellant expressly indicates on page 15 of the Appeal Brief that “[t]he arguments made above with respect to claim 1 also apply to claim 11. Thus, for reasons similar to those presented above with respect to claim 1, the July Office Action has erred in establishing that claim 11 is unpatentable under 35 U.S.C. § 103.” Similarly, although Group V is defined by Appellant as consisting of claims 7, 8, 17, and 18, none of these claims is argued separately. Instead, Appellant expressly indicates on page 15 of the Appeal Brief that “[t]he arguments made above with respect to claim 1 also apply to claim 7. Kuhn Appeal 2020-004783 Application 15/644,559 6 does not cure the deficiencies identified above with respect to the references cited in support of the rejection of claim 1, nor was Kuhn cited for this purpose.” Our procedural rule is thus applicable to Groups IV and V, as defined by Appellant. See 37 C.F.R. § 41.37(c)(1)(iv) (“Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.”); see also Google Tech. Holdings, 980 F.3d at 862. Claim Groups I, II, and III under Rejection A as Adopted By Board Group I: We consider Group I as consisting of claims 1, 4-6, 9-11, and 14-16, 19, and 20, and we select argued independent apparatus claim 1 as the representative claim. All claims in Group I were rejected by the Examiner under Rejection A. Group II: We consider Group II as consisting of claims 2 and 12, and we select argued dependent claim 2 as the representative claim. All claims in Group II were rejected by the Examiner under Rejection A. Group III: We consider Group III as consisting of claims 3 and 13, we select argued dependent claim 3 as the representative claim. All claims in Group III were rejected by the Examiner under Rejection A. See 37 C.F.R. § 41.37(c)(1)(iv) (“the Board may select a single claim from the group or subgroup and may decide the appeal as to the ground of rejection with respect to the group or subgroup on the basis of the selected claim alone.”). Appeal 2020-004783 Application 15/644,559 7 Rejection B of Claims 7, 8, 17, and 18 As noted above, Appellant advances no separate, substantive arguments for claims 7, 8, 17, and 18 that were rejected by the Examiner under Rejection B, over the collective teachings and suggestions of Goldstein, Higa, Fabrizius, and Kuhn. See Final Act. 12-15. We address Rejection B of these claims infra, and apply the doctrine of waiver or forfeiture. See, e.g., 37 C.F.R. § 41.37(c)(1)(iv); see also Google Tech. Holdings, 980 F.3d at 862. Group I, Representative Independent Claim 1 under Rejection A Issues: Under 35 U.S.C. § 103, did the Examiner err by finding that the combination of Goldstein, Higa, and Fabrizius teaches or suggests the disputed representative claim 1 limitations L1, L2, and L3: a computing device configured to: [L1] receive, from the imaging device, a first image of the portion of the tested component in a first state; . . . [L2] receive, from the imaging device, a second image of the portion of the tested component in a second, different state; . . . [L3] wherein a respective first length of the plurality of first lengths corresponds to a respective second length of the plurality of second lengths; . . . . Claim 1 (disputed limitations bracketed as L1, L2, and L3 and emphasis added). Appeal 2020-004783 Application 15/644,559 8 Appellant asserts that claim 1 limitations L1, L2, and L3 are not taught by the cited Goldstein, Higa, and Fabrizius references. See Appeal Br. 6-10. “Receiving” Limitations L1 and L2 of Claim 1 Regarding “receiving” limitations L1 and L2, Appellant contends that claim 1: specifically recites that the computing device is configured to “receive, from the imaging device, a first image of the portion of the tested component in a first state [and] ... receive, from the imaging device, a second image of the portion of the tested component in a second, different state.” As such, Goldstein is decidedly different from the subject matter of claim 1. Goldstein describes, at paragraph [0152], a process in which an image of a new instrument is compared to an image of the “inspected instrument.” As such, Goldstein does not disclose or even suggest a computing device that is configured to “receive, from the imaging device, a first image of the portion of the tested component in a first state [and] ... receive, from the imaging device, a second image of the portion of the tested component in a second, different state,” per claim 1. Appeal Br. 9 (emphasis added). In the Final Action, the Examiner maps limitation L1 to Goldstein at paragraphs 57 and 82. The Examiner maps limitation L2 to Goldstein at paragraphs 17 and 152. See Final Act. 4. In the Answer, as a matter of claim interpretation, the Examiner concludes: “As claimed, the language regarding the first and second state of the component is broad enough to not require that the tested component in the first image is the exact same as in the second image, and the second component may be reasonably considered to be the same as the first component when it is the same type.” Ans. 5. Appeal 2020-004783 Application 15/644,559 9 The Examiner further explains the basis for the rejection in the Answer, pointing to paragraph 57 of Goldstein, as describing in pertinent part: “acquiring an image of the mechanical instrument or a section thereof using one or more cameras accompanied with one or more illuminators.” Ans. 4 (emphasis added). Turning to paragraph 152, Goldstein describes: In some embodiments, the processor is configured to compare the scanned data to that of a standard new instrument, and analyze the difference between the standard instrument and the inspected instrument. In some embodiments, software is used, that compares the scanned data to that of a standard new instrument, and analyzes the difference between the standard instrument and a measured instrument. Although Goldstein’s paragraph 152 describes comparing the scanned data of an inspected instrument (e.g., a dental burr or drill - see ¶ 77) to a standard new (reference) instrument to determine the “level of wear and re- usability” of the inspected instrument (see ¶ 17), we particularly note that Appellant’s claim 1 does not define the recited “first” and “second” states, beyond the requirement that they must be different: [L1] receive, from the imaging device, a first image of the portion of the tested component in a first state; . . . [L2] receive, from the imaging device, a second image of the portion of the tested component in a second, different state; . . . We emphasize that there is no temporal limitation positively recited in claim 1 with respect to when the respective first and second (different) states of the tested component occur and when these states are imaged. For example, if the difference in the states is due to wear, does the claimed “first state” occur before wear of the “tested component,” and does the claimed Appeal 2020-004783 Application 15/644,559 10 “second, different state” occur after wear of the “tested component? Given that claim 1 is silent regarding any temporal limitations, we are left to speculate regarding any intended temporal aspects of the recited first and second “states.” However, we decline to read unclaimed limitations into the claim. Given the absence of temporal language in claim 1, we find Goldstein’s use of “one or more cameras accompanied with one or more illuminators” to acquire [(i.e., receive)] “an image of the mechanical instrument or a section thereof” (¶ 57) teaches or suggests the claim 1 “receive” limitations L1 and L2, because we find the respective claimed “first state” and “second, different state” are broad enough under BRI to encompass Goldstein’s multiple top view images and/or side view images of the same component, when Goldstein’s dental drill bit under inspection (i.e., corresponding to the “tested component” of claim 1) is viewed from different camera angles and various top view and/or side view perspectives. It is our view that a worn portion of a dental drill bit (or burr) in Goldstein could be observed from one or more camera angles or perspectives, but would not likely be observable from all camera angles (e.g., all top/side views and angles). Thus, a first “worn” state could be observed from a first (e.g., front on) camera view, and a second, different camera view might miss the worn portion, because it would be out of the field of view. Therefore, we find the various camera angles and perspectives in Goldstein teach, or at least suggest, the claimed first and second, different states recited in the claim 1 “receiving” limitations L1 and L2.4 4 To the extent that the scope of any claims on appeal is being construed broader by the Examiner or the Board than the interpretation imputed by Appeal 2020-004783 Application 15/644,559 11 Buttressing the Examiner’s findings, see for example, Goldstein’s paragraph 100, that describes multiple images of a dental drill (i.e., “tested component” - claim 1), which include top view images and side view images of the dental drill bit being examined for wear. See also Figure 2 of Goldstein, depicting “a top view camera (220a) and two side view cameras (220b, c). The configuration may further include one or more illuminators (not shown), for example two top view illuminators and two side view illuminators.” Goldstein ¶ 100. We emphasize that Goldstein expressly describes that “the cameras acquire one or more images of the inspected drill or a portion thereof.” Id. (emphasis added). We find paragraph 105 of Goldstein further buttresses the Examiner findings regarding the “receiving” steps L1 and L2 of claim 1: a collection of side view images are acquired and analyzed, from which those conveying best inspection information are selected. For example, side view images where an apex of the mechanical cutting edge is perpendicular to an illuminator may be selected. When a source of illumination is perpendicular to an apex of a worn edge, the reflection from a dull, non sharp edge is the largest. Goldstein ¶ 105 (emphasis added).5 Appellant’s arguments in the Briefs, we emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). 5 Regarding the claimed “segment” functions of apparatus claim 1, we additionally note that Goldstein teaches extracting (i.e., isolating) the image of the burr (i.e., tested component) from its background. See Goldstein ¶ 138 (“On step (1110), the image is acquired. On step (1120), a contour segmentation algorithm is applied in order to extract the image of the burr, from its background.”) (emphasis added). Appeal 2020-004783 Application 15/644,559 12 We further note that the Examiner relies upon Fabrizius, which describes a typical remanufacturing process as including repetitive inspection, machining, and inspection steps to create a defect-free surface. See Fabrizius ¶ 4. Such an indication that it is typical in the art to re- measure the same surface in different states further supports the Examiner’s findings that it would have been obvious, in view of the teachings of Goldstein, Higa, and Fabrizius, to measure first and second states of a tested component. Accordingly, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness as pertaining to the disputed “receiving” limitations L1 and L2 of independent claim 1. “Wherein” clause Limitation L3 of Claim 1 We next consider the disputed limitation L3 of claim 1: [L3] wherein a respective first length of the plurality of first lengths corresponds to a respective second length of the plurality of second lengths; . . . . Claim 1 (emphasis added). Regarding limitation L3 of claim 1, Appellant contends: Higa, at paragraph [0064], does not disclose the correspondence discussed above in which [(L3)] “a respective first length of the plurality of first lengths corresponds to a respective second length of the plurality of second lengths,” per claim 1. That is, Higa, at paragraph [0064], determines correspondence between the feature points of the first image and the feature points of the second image by comparing all of the feature points of the first image to all of the feature points of the second image, and then assigning an approximation of correspondence based on the “lowest distance value” between Appeal 2020-004783 Application 15/644,559 13 two of the feature points in the SIFT feature space. This correspondence in Higa is merely a function of an approximation and in no way results in actual correspondence, which is suggested as Higa notes that corresponding feature amounts have the “lowest distance value.” Actual correspondence would have a zero distance value. As such, Higa, at paragraph [0064], in no way discloses or even suggests the foregoing subject matter of claim 1. Appeal Br. 7-8 (emphasis added). But Appellant’s arguments are not commensurate with the scope of the claim - claim 1 is silent regarding any mention of the argued “actual correspondence” (Appeal Br. 7) (emphasis added). See Claim 1. We decline to read disclosed and argued limitations from the Specification into the claims. “[A] particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.” SuperGuide Corp. v. DirecTV Enter., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Thus, “each claim does not necessarily cover every feature disclosed in the specification. When the claim addresses only some of the features disclosed in the specification, it is improper to limit the claim to other, unclaimed features.” Ventana Med. Sys., Inc. v. Biogenex Labs., Inc., 473 F.3d 1173, 1181 (Fed. Cir. 2006). Our reviewing court has repeatedly “cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1346-47 (Fed. Cir. 2015) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1328 (Fed. Cir. 2002)). This controlling legal authority is applicable here. Moreover, Appellant’s claim 1 does not specify or otherwise limit exactly how the claimed correspondence between the “length of the plurality of first lengths” Appeal 2020-004783 Application 15/644,559 14 and the “respective second length of the plurality of second lengths” is actually determined (e.g., greater than, equal to, or less than?). Further, given the silence of claim 1 regarding how the correspondence between the measured respective “lengths” is determined, we find Higa describes a type of correspondence that teaches or suggests (and thus renders obvious) limitation L3 of claim 1: i.e., “distances may be used as the distances between the feature points. Here, feature points having the lowest distance value, for instance, may be corresponding feature points.” Higa ¶ 64 (emphasis added). Given this evidence (id.), we additionally find the “distances” described in Higa (id.) teach or suggest the claim 1 “lengths” of a respective portion of the first and second target areas. Accordingly, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness as pertaining to the disputed “wherein” clause limitation L3 of independent claim 1. Motivation to Combine the Goldstein, Higa, and Fabrizius References Regarding the combinability of the cited references, Appellant contends: a person of ordinary skill in the art would not have looked to Higa to cure the acknowledged deficiencies of Goldstein, as modifying Goldstein to incorporate the Higa visual search algorithm would render Goldstein unsuitable for its primary purpose, which is impermissible.[] SIFT feature amounts are used for visual search, and in no way relate to a determination “of wear and re-usability” per Goldstein at paragraph [0017]. In fact, SIFT feature amounts are incompatible with any determination “of wear and re-usability” as the smoothed and resampled images would remove any aspects “of wear,” thereby rendering Goldstein unfit for its primary purpose. Indeed, the entire purpose of SIFT feature amounts is to reduce the impact of slight Appeal 2020-004783 Application 15/644,559 15 changes due to image scale, noise, and illumination (as noted above). Accordingly, a person of ordinary skill in the art would not have looked to Higa to cure the acknowledged deficiencies of Goldstein, as modifying Goldstein to incorporate the Higa visual search algorithm would render Goldstein unfit for its primary purpose. Appeal Br. 11 (emphasis added). The relevant inquiry here is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Examiner specifically finds that an artisan would have been “motivated to combine these teachings in order to provide an apparatus for detecting feature points in a first and second image.” Final Act. 5 (citing Higa ¶ 13) (emphasis added). Although Appellant focuses the argument on the “SIFT (Scale Invariant Feature Transform) feature amount[]” that is described in the “BACKGROUND” paragraph two of Higa, and as applicable to specific embodiments (e.g., as described at paragraphs 52 and 64 of Higa), Appellant has not addressed the Examiner’s specific finding of motivation that relies solely upon paragraph 13 of Higa.6 We emphasize that paragraph 13 of Higa is silent regarding any mention of SIFT: 6 The presence or absence of a reason “to combine references in an obviousness determination is a pure question of fact.” In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000) (citing In re Dembiczak, 175 F.3d 994, 1000 (Fed. Cir. 1999)). A reason to combine teachings from the prior art “may be found in explicit or implicit teachings within the references themselves, from the ordinary knowledge of those skilled in the art, or from Appeal 2020-004783 Application 15/644,559 16 An image processing apparatus according to the present invention has: first feature amount generating means for generating, with respect to a plurality of feature points to be detected from a first image, a first local feature amount group including local feature amounts representing feature amounts of a plurality of local regions containing the respective feature points, and a first coordinate position information group including coordinate position information; region dividing means for clustering the feature points of the first image based on the first coordinate position information group; and collation means for collating, in units of clusters, the first local feature amount group with a second local feature amount group formed from local feature amounts of feature points detected from a second image. Higa ¶ 13. To the extent that Appellant argues that the use of SIFT (in Higa) would render “Goldstein unfit for its primary purpose” (Appeal Br. 11), Appellant has not addressed the Examiner’s specific findings regarding paragraph 13 of Higa.7 To the extent that the references cited by the Examiner may have a different purpose than Appellant’s claimed invention, our reviewing court guides it is irrelevant that the prior art and the present invention may have different purposes. See Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) (“A finding that two inventions were designed to resolve different problems . . . is insufficient to demonstrate that one invention teaches away from another.”). It is sufficient that references suggest doing what Appellant did, although the the nature of the problem to be solved.” WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999) (emphasis added) (citing In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998)). 7 Arguments not made are forfeited or waived. See, e.g., 37 C.F.R. § 41.37(c)(1)(iv); see also Google Tech. Holdings, 980 F.3d at 862. Appeal 2020-004783 Application 15/644,559 17 Appellant’s particular purpose was different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re Gershon, 372 F.2d 535, 538-39 (CCPA 1967)). For a prima facie case of obviousness to be established, the reference need not recognize the same problem solved by the Appellant. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). The Supreme Court provides controlling authority that is applicable here: “[N]either the particular motivation nor the avowed purpose of the [Appellant] controls” when performing an obviousness analysis. KSR, 550 U.S. at 419. Further, Appellant does not provide evidence sufficient to demonstrate that combining the teachings of Goldstein, Higa, and Fabrizius, as found by the Examiner (Final Act. 5-6), would have been “uniquely challenging or difficult for one of ordinary skill in the art,” (Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)), nor has Appellant provided any objective evidence of secondary considerations, which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Our controlling case law recognizes that a “predictable use of prior art elements according to their established functions” would have been obvious. KSR, 550 U.S. at 417. KSR guides that “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason Appeal 2020-004783 Application 15/644,559 18 to pursue the known options within his or her technical grasp. See id. at 418 The controlling authority of KSR is applicable here. With respect to the obviousness of all claims before us on appeal, we emphasize that “the question under 35 USC 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). See also Manual of Patent Examining Procedure § 2123 (9th Ed., Rev 10.2019 (June 2020)). Accordingly, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness for representative independent claim 1. Grouped claims 4-6, 9-11, 14-16, 19, and 20 (not argued separately) fall with representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the Examiner’s Rejection A of claims 1, 4-6, 9-11, 14-16, 19, and 20 over the collective teachings and suggestions of Goldstein, Higa, and Fabrizius. We address infra remaining claims 2, 3, 12, and 13 that were also rejected by the Examiner under Rejection A. Appeal 2020-004783 Application 15/644,559 19 Group II, Dependent Claims 2 and 12 under Rejection A Issue: Under 35 U.S.C. § 103, did the Examiner err by finding that the combination of Goldstein, Higa, and Fabrizius teaches or suggests the disputed representative claim 2 limitations: 2. The apparatus of claim 1, wherein the computing device is further configured to determine whether a difference between each respective first length of the plurality of first lengths and the corresponding second length of the plurality of second lengths is within a predetermined tolerance. Appeal Br. 18 (emphasis added). Appellant contends: Notably, Goldstein is comparing an image of a new instrument to an image of an inspected instrument, and therefore none of the burrs from which feature points would be extracted in the image of the inspected instrument would ever match the image of the new instrument (which presumably has no burrs). Indeed, the entire purpose of Higa in performing feature point extraction that involves the Guassian functions is to avoid capture characteristics that may distort the input image or introduce noise (such as burrs) that would reduce the likelihood of a correct match. In this respect, adding the feature points for purposes of visual search to the Goldstein processor for determining “wear and re-usability” would render Goldstein unfit for its primary purpose. Accordingly, Goldstein in view of Higa does not disclose or suggest the subject matter of claim 2. Appeal Br. 12-13 (emphasis added). In response, we note that claim 2 is silent regarding any mention of the argued matching. See Id. We have fully addressed Appellant’s combinability argument (“would render Goldstein unfit for its primary purpose”), regarding our discussion of claim 1 above. Id. (emphasis added). Appeal 2020-004783 Application 15/644,559 20 Further, the Examiner shifts position in the Answer (p. 9) and cites to Fabrizius (not Goldstein) as teaching or suggesting the limitations of claim 2: Paragraph 81 of Fabrizius cites, “In an embodiment, the method 600 may also be implemented for detecting wears of multiple segments of the worn surface 118. The controller 500 may compare the maximum depth ‘Dm’ of each segment of the worn surface 118 to the tolerance limit ‘R0’.” Fabrizius describes depths compared against thresholds, described above as lengths. Therefore Fabrizius teaches “wherein the computing device is further configured to determine whether a difference between each respective first length of the plurality of first lengths and the corresponding second length of the plurality of second lengths is within a predetermined tolerance.” Ans. 9 (emphasis omitted but added in bold). However, Appellant does not file a Reply Brief to further rebut the Examiner’s specific findings regarding Fabrizius.8 Accordingly, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness for representative dependent claim 2. Grouped dependent claim 12 (not argued separately) falls with representative claim 2. See 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the Examiner’s Rejection A of dependent claims 2 and 12. 8 Arguments not made are forfeited or waived. See, e.g., 37 C.F.R. § 41.37(c)(1)(iv); see also Google Tech. Holdings, 980 F.3d at 862. Appeal 2020-004783 Application 15/644,559 21 Group III, Dependent Claims 3 and 13 under Rejection A Issue: Under 35 U.S.C. § 103, did the Examiner err by finding that the combination of Goldstein, Higa, and Fabrizius teaches or suggests the disputed representative claim 3 limitations: 3. The apparatus of claim 1, wherein the computing device is further configured to determine, based on the comparison of each respective first length of the plurality of first lengths and the corresponding second length of the plurality of second lengths, whether the first target area substantially corresponds to the second target area. Appeal Br. 18 (emphasis added).9 Appellant contends: “Nowhere does Goldstein discuss anything remotely related to a length, much less comparison of lengths between two different images of the same tested component, as recited by claim 1 from which claim 3 depends.” Appeal Br. 14. Similar to our discussion above for claims 2 and 12, the Examiner shifts position in the Answer and cites to Fabrizius (not Goldstein) as teaching or suggesting the limitations of claim 3. See Ans. 9-10. 9 Our reviewing court has adopted a broad interpretation for the term “substantial” as used in patent claims. The Court of Appeals for the Federal Circuit has repeatedly reaffirmed that the term “substantial” implies “approximate.” Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1329 (Fed. Cir. 2006). See also Playtext Products, Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed. Cir. 2005) (“The term ‘substantial’ is a meaningful modifier implying ‘approximate,’ rather than ‘perfect.’”), citing Liquid Dynamics Corp. v. Vaughan Co., Inc., 355 F.3d 1361, 1368 (Fed. Cir. 2004). Appeal 2020-004783 Application 15/644,559 22 And Appellant has not substantively traversed the Examiner’s specific findings (id.) regarding Fabrizius by filing a Reply Brief.10 Accordingly, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness for representative dependent claim 3. Grouped dependent claim 13 (not argued separately) falls with representative claim 3. See 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the Examiner’s Rejection A of dependent claims 3 and 13. Rejection B of Claims 7, 8, 17, and 18 over Goldstein, Higa, Fabrizius, and Kuhn Appellant advances no separate, substantive arguments addressing the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness for Rejection B of claims 7, 8, 17, and 18, over the collective teachings and suggestions of Goldstein, Higa, Fabrizius, and Kuhn. See Final Act. 12-15. Arguments not made are forfeited or waived. See, e.g., 37 C.F.R. § 41.37(c)(1)(iv); see also Google Tech. Holdings, 980 F.3d at 862. Therefore, we sustain the Examiner’s Rejection B of dependent claims 7, 8, 17, and 18. CONCLUSION Appellant has not shown that the Examiner erred in rejecting claims 1-20 under 35 U.S.C. § 103 over the collective teachings and suggestions of the cited references. 10 See supra n.8 (Arguments not made are forfeited or waived.). Appeal 2020-004783 Application 15/644,559 23 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-6, 9-16, 19, 20 103 Goldstein, Higa, Fabrizius 1-6, 9-16, 19, 20 7, 8, 17, 18 103 Goldstein, Higa, Fabrizius, Kuhn 7, 8, 17, 18 Overall Outcome 1-20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED